Federal Key – Leadership/Coordination

Federal action is necessary to provide leadership and effective redistribution — history proves.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 221-223)

The Federal Government as the Final Guarantor of Equal Access to an Excellent Education

By enacting federal legislation, programs, and initiatives that embrace the elements discussed above, the federal government would reestablish itself as the final guarantor of equal access to an excellent education. Historically, ensuring equal educational opportunity was one of the principle rationales for federal involvement in education by assisting vulnerable groups when the states have failed to act in the national interest. Yet, an increasing focus on standards and accountability has shifted federal attention away from issues of educational equity, while federal reforms have unsuccessfully attempted to ensure a quality education for all schoolchildren.74 Although the federal government consistently should aim to maintain excellence, it also needs to reassert itself as the final guarantor of equal educational opportunity. In making this recommendation, I join with other scholars, such as Michael Rebell and Goodwin Liu, whose proposals call on the federal government to guarantee some form of equal educational opportunity.75

History suggests that the federal government is likely to be the only level of government to engage in the leadership and substantial redistribution of resources that equal access to an excellent education will require. Local politics often hinders substantial efforts to redistribute resources. Thus, it is not [end page 221] surprising that it took federal legislation to initiate numerous past reform efforts that addressed disparities in educational opportunity, such as those that assist disadvantaged students, girls and women, and disabled children. The federal government possesses an unparalleled ability to mobilize national, state, and local reform when the nation is confronted with an educational crisis.76 Therefore, my call for a stronger federal role in education builds on the historical federal role in advancing educational equity and the superior ability of the federal government to accomplish a redistribution of educational opportunity.

By focusing its attention on the policy-making areas identified above, the federal government would shoulder the primary burden for a national effort to ensure equal access to an excellent education and draw on its strengths in education policy making. Federal leadership would incentivize the states to engage in a collaborative partnership with the federal government to achieve this goal. At the same time, states, facing compelling incentives to join the national effort, would retain substantial control over education in choosing among a wide array of reforms.

Some may argue that the states should bear the primary burden for ensuring equal access to an excellent education because education remains primarily a state function. I reject this dualist understanding of education and highlight here the long history that reveals thatthe states will not rectify opportunity and achievement gaps on their own. Embracing federal leadership on these issues builds on the growing consensus reflected in NCLB and other federal education legislation: the federal government should exercise a substantial role in education law and policy.77

Others may contend that the federal government should rein in its growing role in education. In some ways, this criticism points to the failures of past initiatives as evidence that the federal government's role in education should be curtailed. Most recently, some scholars condemn the shortcomings and implementation of NCLB and RTTT. Undeniably, the federal government has undertaken a variety of unsuccessful education reforms.78 Yet, an established track record in education over the last fifty years has given the United States ample evidence to identify the strengths and weaknesses of federal education policy making. My theory embraces a variety of federal policy-making strengths and builds on the federal government's superior and more consistent reform record on issues of educational equity in the face of inconsistent and overwhelmingly ineffective state reform.79 [end page 222]

Today, although the federal government invests in education, this investment is quite limited relative to state and local investments. Increasing federal demands for its limited contribution have enabled the federal government to avoid shouldering a substantial portion of the costs and burdens associated with accomplishing the nation's education goals while still enjoying the ability to set the education agenda and demand results. 80 Having the federal government as the final guarantor of equal access to an excellent education would strengthen the relationship between growing federal influence in education and greater federal responsibility for accomplishing national objectives. This transformation would greatly improve on the nation's current cooperative federalism approach to education.

Federal Key – Interstate Disparities

Interstate disparities are most important — state action can’t eliminate them.

Liu 6 — Goodwin Liu, Assistant Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, later became an Associate Justice of the California Supreme Court, holds a J.D. from Yale Law School, 2006 (“Interstate Inequality In Educational Opportunity,” New York University Law Review (81 N.Y.U.L. Rev. 2044), December, Available Online to Subscribing Institutions via Lexis-Nexis)

Introduction

For the past half-century, legal and policy efforts to promote greater equality in educational opportunity have focused primarily on two structural problems. The first - the main preoccupation of school desegregation - is inequality between schools within school districts. The second - the principal target of school finance reform - is inequality among school districts within states. This Article addresses a third and bigger problem that has long been ignored: inequality among states across the nation.

As recent commemorations of Brown v. Board of Education n1 have made clear, the equality revolution initiated by Brown transformed many aspects of our society and legal culture. n2 In education, the decision drew attention to grave disparities between black and white schools within the same district. Although Brown assumed equality in the "tangible factors in the Negro and white schools," n3 the reality was that dual school systems relegated minority schoolchildren to inferior learning environments. n4 In the decades between the Civil Rights Act of 1964 and retrenchment by the Supreme Court in the early 1990s, civil rights advocates sought to remedy these educational disparities through desegregation.

Although desegregation reduced disparities within districts to some degree, n5 demographic forces and judicial indifference have circumscribed [*2046] its efficacy in attacking the larger problem of educational inequality. As middle-class white families moved from central cities to surrounding suburbs, the problem of educational inequality took on an interdistrict character. In 1973, the Supreme Court held that interdistrict disparities in school funding based on local property wealth do not violate the Equal Protection Clause, n6 and in 1974, it all but declared interdistrict segregation to be beyond the reach of busing remedies. n7 These decisions left few options in federal court for minority schoolchildren in high-poverty districts, setting in motion thirty years of ongoing effort in state courts and state legislatures to narrow educational disparities between districts. Relying on education clauses in state constitutions, advocates have filed lawsuits in forty-four states challenging school finance systems. n8 State courts have appeared receptive to educational adequacy claims in recent years, n9 and there is evidence that litigation has produced a modest [*2047] reduction of interdistrict inequality within states. n10

The legacies of segregation and school finance inequality suggest the important role of state law and policy in structuring educational inequality. However, a national goal of remedying unequal educational opportunity cannot be fully achieved through strategies that focus on inequality within states. The reason is simple: The most significant component of educational inequality across the nation is not inequality within states but inequality between states. As economists Sheila Evans, William Murray, and Robert Schwab observe, "differences in spending between ... New Jersey, California, and Texas are much more important than differences in spending between Trenton, Sacramento, and Austin and their suburbs." n11 Even if we were to eliminate interdistrict disparities within each state, enormous disparities across states would remain. In this Article, I analyze the empirical and policy dimensions of this long-neglected problem and propose recommendations for Congress to address it.

Only federal action solves.

Liu 6 — Goodwin Liu, Assistant Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, later became an Associate Justice of the California Supreme Court, holds a J.D. from Yale Law School, 2006 (“Interstate Inequality In Educational Opportunity,” New York University Law Review (81 N.Y.U.L. Rev. 2044), December, Available Online to Subscribing Institutions via Lexis-Nexis)

First, because interstate differences in education funding primarily reflect interstate differences in fiscal capacity, the distribution of federal aid should compensate for differences across states in their ability to support education. Narrowing such differences is a school finance role that only the federal government can fulfill, and it is the key reform that would orient the federal role toward treating the nation's schoolchildren as equal members of a single political community.

Robinson 16 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2016 (“No Quick Fix for Equity and Excellence: The Virtues of Incremental Shifts in Education Federalism,” Stanford Law & Policy Review (27 Stan. L. & Pol'y Rev 201), Available Online to Subscribing Institutions via Lexis-Nexis)

Disparities in educational opportunity along lines of class, race and neighborhood remain an enduring characteristic of schools and districts throughout the United States. n2 These disparities are shaped in substantial part by the funding mechanisms that govern schools. n3 As the recent report of the U.S. Department of Education's Equity and Excellence Commission noted, "students, families and communities are burdened by the broken system of education funding in America." n4 Although some progress has been made, despite almost half a century of state school finance litigation, n5 most states generally have not taken consistent and sustained action to adopt and maintain funding systems that promote equal access to an excellent education. n6 Furthermore, the education reforms that have been undertaken have not demanded sufficient changes to end the longstanding inequities in how the states fund schools. n7

The United States should not expect these longstanding disparities and challenges to end without a new commitment and approach to eliminating them. Even though we have learned some important lessons from how states have implemented their education clauses, the laboratory of the states has failed to protect the national interest in an excellent and equitable education system for all children. Given this inconsistent and lackluster state commitment to the education finance systems that the United States needs, the United States must look for new avenues to secure this important national interest. Federal options for addressing spending disparities areparticularly crucial because the greatest [*203] variationin per pupil spending occurs between states, rather than within states. n8 Currently, this variation in funding between states accounts for seventy-eight percent of per pupil spending differences and this variation represents a "historic high" and highlights the inadequacy of state reforms alone to equalize resources. n9 Furthermore, research demonstrates that on international assessments, the achievement of U.S. students at all income levels, including those from upper income families, lags behind their international peers. n10

Resolving interstate disparities is necessary to solve the advantage — the counterplan is not sufficient.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 203-204)

The Rodriguez plaintiffs, Mexican American schoolchildren who resided in districts with a low property tax base, challenged the Texas school finance system in federal court because they sought educational opportunities that equaled those of their more affluent and white peers in a nearby neighborhood. Although state school finance litigation and reform has resulted in some reform of school finance systems, the educational opportunity gap that the Rodriguez plaintiffs sought to remedy in the early 1970s remains one of the persistent challenges that plague the American education system. Today, it relegates at least ten million students in low-income neighborhoods and millions more minority students to poorly performing teachers, substandard facilities, and other inferior educational opportunities.1

Why have the disparities that the Rodriguez plaintiffs attempted to remedy continued to burden the public school system in the United States? Although these disparities have broad roots, they persist in part because the United States invests more money in high-income districts than in low-income districts, a sharp contrast to other developed nations. 2 Scholars and court decisions also have documented the sizeable intrastate disparities in educational opportunity. In addition, interstate inequalities represent the largest component of disparities in educational opportunity. The harmful nature of [end page 203] interstate disparities falls hardest on disadvantaged schoolchildren who have the most educational needs, and states do not possess the resources and capacity to address the full scope of these disparities.3

Only increased federal funding can effectively redistribute resources between states.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 220)

Federal Financial Assistance to Close Opportunity and Achievement Gaps

Federal financial assistance will be essential for expanding the capacity of states to participate in a comprehensive national effort to ensure equal access to an excellent education. The federal financial contribution should include both incentives and assistance to address opportunity and achievement gaps. Financial incentives would draw attention to this critical issue and motivate states to implement reforms, just as incentives motivated reform through RTTT. Financial assistance also would expand the potential reform options beyond what states could implement with their own state resources and would supply political cover for politicians who support reform.69

The federal government should generously increase its contribution to education costs while continuing to share these costs with the state governments. Additional financial support for education would leverage the federal government's superior ability to redistribute resources among the states. Past experience reveals that federal resources can be an effective means for influencing state and local education policy. Generous federal financial assistance would fund a larger percentage of the costs of reforms than it did with past education reforms, which typically failed to deliver the substantial funds anticipated when the laws were enacted. The level of generosity of federal funding should be based on the disparate capacities of states to close opportunity and achievement gaps. Additionally, a blend of federal and state funding would encourage greater efficiency than full federal funding because it should encourage both governments to contain costs.70

Federal action is key to effective redistribution.

Kleven 10 — Thomas Kleven, Professor of Law at the Thurgood Marshall School of Law at Texas Southern University, holds an L.L.B. from Yale University, 2010 (“Federalizing Public Education,” Villanova Law Review (55 Vill. L. Rev. 369), Available Online to Subscribing Institutions via Lexis-Nexis)

While some have praised NCLB as contributing at least potentially to improving educational opportunity, n62 others have criticized it as ill-designed and unlikely to be effective. n63 Principal criticisms are that it provides insufficient funding to enable states and localities to meet its goal; n64 that it fails to establish meaningful standards for evaluating student performance; n65 that it encourages states, in order to avoid sanctions, to set inadequate standards and to induce poorly performing students to drop [*400] out of school; n66 that it promotes rote learning to enable students to pass standardized tests at the expense of teaching them to reason and think critically; n67 and that it is a Trojan Horse designed to undermine public education and foster privatization. n68 However, even if successful, NCLB will leave much of the inequality of the existing system in place. At a minimum, full federal funding seems essential to providing a comparable education for all students. Even if all students meet adequate minimum performance standards, funding inequalities will likely persist and result in superior educational opportunities for those living in more well-off states and localities.

Moreover, that federal intervention has historically been needed over the past forty-five years or so to induce states to redress unequal opportunity in various aspects of education, suggests that the political process at the federal level may in general be better suited than at the state levelto bring about more nearly comparable opportunity. Comparable opportunity requires that the well-off subsidize the education of the less well-off, [*401] and that those whose children do not have costly special needs subsidize the education of children who do. The federal government seems the appropriate level to undertake redistributive measures for two reasons: first, the progressivity of the federal tax system, as against the regressivity of the sales and property taxes on which states and localities heavily rely; n69 and, second, the ability of the well-offand of business interests to thwart redistribution more persuasively by threatening to leave a state than to depart the country. n70 In addition, lack of comparable educational opportunity primarily prejudices disadvantaged people who also lack comparable political power due to poverty or historical discrimination or being relatively few in number. Reforms of the magnitude required to approach comparable educational opportunity will likely require a massive reform movement instigated by coalitions among the disadvantaged and less powerful. n71 [*402] Such coalitions seem more likely to be effective at the federal level where greater numbers can be brought to bear and more attention shone on the needed changes.

Interstate disparities are larger than intrastate disparities.

Liu 6 — Goodwin Liu, Assistant Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, later became an Associate Justice of the California Supreme Court, holds a J.D. from Yale Law School, 2006 (“Interstate Inequality In Educational Opportunity,” New York University Law Review (81 N.Y.U.L. Rev. 2044), December, Available Online to Subscribing Institutions via Lexis-Nexis)

The dominance of interstate as opposed to intrastate disparities in the total extent of interdistrict inequality nationally is confirmed by economists Murray, Evans, and Schwab. n94 In studying the impact of school finance litigation on the distribution of school resources, they examined inequalities in education spending within states and between states from 1972 to 1992. With inflation-adjusted spending data from over 10,000 districts in forty-six states, they quantified interdistrict variation using two measures that can be decomposed to show the extent of variation within and across states. The first measure, the Theil index, focuses on the ratio of each district's share of total expenditures in the relevant jurisdiction (state or nation) to the district's share of the jurisdiction's total enrollment. n95 The second [*2072] measure, the coefficient of variation, focuses on the difference between per-pupil spending in each district and average per-pupil spending in the relevant jurisdiction. n96 For both measures, the total amount of interdistrict variation nationally is the sum of two components: one that compares per-pupil spending in a given district to the state mean, and another that compares state mean spending with the national mean. The former is a measure of variation within states; the latter is a measure of variation across states.

Using these measures, Murray, Evans, and Schwab conclude that "roughly two-thirds of nationwide inequality in spending is between states and only one-third is within states." n97 In 1972, the share of interdistrict variation attributable to interstate inequality was 69% measured by the Theil index and 68% measured by the coefficient of variation. n98 This share, while falling between 1972 and 1982, returned to 1972 levels in the following decade. In 1992, interstate disparities comprised 67% of national interdistrict inequality according to the Theil index and 65% according to the coefficient of variation. n99 These estimates are slightly inflated, however, because they do not account for geographic differences in educational costs. In a subsequent study, the same authors showed that on a cost-adjusted basis, interstate variation measured by the Theil index comprised 53% to 60% of total interdistrict inequality in 1992, depending on the geographic cost index used. n100 In sum, education spending varies widely across states, and these wide disparities account for more of the total interdistrict inequality nationally than do disparities within states.

Federal Key – Empirical

Empirical evidence disproves state solvency.

Robinson 15 — Kimberly Jenkins Robinson, Professor of Law and Austin Owen Research Scholar at the University of Richmond School of Law, Researcher at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, former Associate Professor at the Emory School of Law, former General Attorney in the Office of the General Counsel at the United States Department of Education, holds a J.D. from Harvard Law School, 2015 (“How Reconstructing Education Federalism Could Fulfill the Aims of Rodriguez,” The Enduring Legacy of Rodriguez: Creating New Pathways to Equal Educational Opportunity, Edited by Charles J. Ogletree, Jr. and Kimberly Jenkins Robinson, Published by Harvard Education Press, ISBN 9781612508313, p. 209-210)

The Inconsistencies in the Benefits of Education Federalism

Although education federalism undoubtedly reaps some of the benefits that it is designed to accomplish, the current approach does not consistently yield the benefits that it is supposed to secure. For instance, education federalism has been praised for its ability to allow the state and local governments to serve as "laboratories" of reform. However, research reveals that in the area of school finance reform, most reforms have beenfairly limited in scopeand that the reliance on property taxesto fund schools remains the prevailing approach to local school funding. 26 This approach has continued despite the Supreme Court's 1973 call for school finance reform in Rodriguez: "The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity."27

Even when plaintiffs have prevailed in litigation that sought to reform school finance systems, most states typically have maintained the same fundamental and unequal structure for school finance. Additionally, in a substantial [end page 209] majority of the states, funding inequities between wealthy and poor districts and schools persist.28 In 2012, only fifteen states provided more funding to districts with high concentrations of poverty than those with low concentrations of poverty, despite consistent research that low-income students require more resources for a successful education than do their more affluent peers. The 2013 Equity and Excellence Commission report notes that substantial reform is needed because, apart from a few exceptions, states fail to link their school finance systems to the costs that they would need to invest to educate all children in compliance with state standards.29 Given decades of reforms that have not made consistent and substantial inroads on these challenges, the states are not serving as effective laboratories for school finance reform.

( ) Their counterplan ruins policymaking education.

Posner 14 — Paul L. Posner, Director of the Public Administration Program at George Mason University, former President of the American Society for Public Administration, former Managing Director for Federal Budget and Intergovernmental Relations at the U.S. Government Accountability Office, holds a Ph.D. in Political Science from Columbia University, 2014 (“The Debate We’re Not Having over Fiscal Disparities,” Governing, August 13th, Available Online at http://www.governing.com/columns/smart-mgmt/col-state-local-government-fiscal-capacity-disparity.html, Accessed 07-20-2017)

While the theory is alluring, competition does not play out on a neutral field. Significant disparities exist in the tax bases and needs across states and localities. A 2007 study by the Urban Institute and the Brookings Institution using the latest data on comparative fiscal capacities across states and localities showed fiscal capacity varying by nearly 120 percent between Connecticut's state and local governments and those of Mississippi. Typically, jurisdictions with low tax bases also are those with high spending needs, which together add up to a low fiscal-capacity score.

These differences have real-world consequences that are often hidden in policy debates. First, poorer jurisdictions with lower tax bases such as Mississippi would have to raise tax rates more than twice as much as jurisdictions such as Connecticut to realize the same revenue levels. But that's not all. A clear incentive is provided for wealthier businesses and citizens to move to wealthier jurisdictions to enjoy comparable or better public services with lower tax rates than poorer jurisdictions would have to levy to provide the same service levels.

This dynamic precipitates a vicious cycle, one in which the poorer places get worse while better-off jurisdictions get stronger - an all-too- familiar saga for central cities like Detroit that have witnessed the leeching of their tax bases over many decades to wealthier suburbs. While poorer jurisdictions might ultimately draw in new economic resources through lower real-estate prices, such a self-equilibrating dynamic plays out over many years, if at all.

Unfortunately, disparities in economic resources not only lead to disparate tax levels but also to highly unequal levels of public services across jurisdictions. Simply put, spending per person is lowest in places where needs are highest. As the map below shows, the areas that fall below average levels of services and above average needs are disproportionately in the South and Southwest.

[Map/Graphic Omitted]

Such disparities constitute a serious public-policy challenge that can undermine key national commitments and values to deliver public-policy programs to those people and places that need them the most. With renewed national debate and concern emerging about inequality from both political parties, disparities across governments is an issue that should be getting far more attention than it is.

( ) They need a comparative solvency advocate to justify this plank.

Liu 6 — Goodwin Liu, Assistant Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, later became an Associate Justice of the California Supreme Court, holds a J.D. from Yale Law School, 2006 (“Interstate Inequality In Educational Opportunity,” New York University Law Review (81 N.Y.U.L. Rev. 2044), December, Available Online to Subscribing Institutions via Lexis-Nexis)

At the same time, however, it is difficult to believe that our gaping interstate disparities in educational standards and resources have little or no bearing on unequal opportunity and outcomes. From a policy perspective, the problem is one that only the federal government can meaningfully address. From a constitutional perspective, the existing interstate patchwork fails to comport with the guarantee of national citizenship, and current federal policies do not reflect a reasonable approach to congressional enforcement of the guarantee. This predicament underscores the need for a national commitment to educational adequacy for equal citizenship. The most promising means of instantiating this commitment, I have argued, is to extend and build upon recent standards-based reforms within a framework of cooperative federalism.

Liu 6 — Goodwin Liu, Assistant Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, later became an Associate Justice of the California Supreme Court, holds a J.D. from Yale Law School, 2006 (“Interstate Inequality In Educational Opportunity,” New York University Law Review (81 N.Y.U.L. Rev. 2044), December, Available Online to Subscribing Institutions via Lexis-Nexis)

Part II takes a detailed look at current educational inequality across states. Using data adjusted for regional differences in educational costs and student needs, I show that per-pupil spending varies considerably across states, with most jurisdictions in the Northeast and Upper Midwest significantly outspending states in the South, Southwest, and West. This geographic pattern disfavors children who are poor, minority, or limited in English proficiency. In addition, interstate comparisons of educational performance show a similar geographic pattern of inequality. Although demographic factors explain some of the variation, the available evidence suggests a significant association between resources and outcomesin low-spending, low-performing states. Further, I show that interstate disparities in education resources have more to do with the ability of states to finance education than with their willingness to do so, highlighting the need for a robust federal role in ameliorating interstate inequality.

( ) Interstate disparities are due to fiscal capacity, not effort.

Liu 6 — Goodwin Liu, Assistant Professor of Law at the Boalt Hall School of Law at the University of California-Berkeley, later became an Associate Justice of the California Supreme Court, holds a J.D. from Yale Law School, 2006 (“Interstate Inequality In Educational Opportunity,” New York University Law Review (81 N.Y.U.L. Rev. 2044), December, Available Online to Subscribing Institutions via Lexis-Nexis)

These examples show that both effort and capacity play a role in explaining interstate disparities in educational resources. We can gauge the relative importance of the two factors by comparing the relationship between capacity and revenue with the relationship between effort and revenue. Table 6 describes these relationships with simple correlation coefficients using TTR, SPI, and GSP as alternative measures of fiscal capacity. Using unadjusted data on revenue and capacity, we find that, while revenue is positively associated with both capacity and effort (top panel), the relationship between revenue and capacity is much stronger. When the data are adjusted for geographic cost differences and pupil weights (bottom panel), there is an attenuated but similar difference between capacity and effort as a correlate of state revenue. Thus, while some states with low capacity manage to achieve high revenue with high effort, and while others with high capacity have low revenue because of low effort, Table 6 suggests that variation in fiscal capacity plays a larger role in explaining interstate differences in nonfederal education revenue than variation in effort.

The advantage of high fiscal capacity is further evident from the negative correlation between state capacity and state effort. n156 In other words, states with higher capacity tend to exert lower effort. Among the ten states with the highest fiscal capacity, only two exerted above-average effort in 2001-02, and neither one exceeded the average by more than 10%. By contrast, among the ten states with the lowest capacity, eight showed above-average effort, and four exceeded the average by more than 10%. Despite the generally higher effort exerted by states with lower capacity, nonfederal revenue per weighted pupil was almost 40% greater on average in the ten [*2089] states with the highest capacity ($ 7615) than in the ten states with the lowest capacity ($ 5480). This pattern is analogous to the familiar inequality between school districts in states whose education finance systems rely heavily on local property taxes. n157

In sum, fiscal capacity and effort are both determinants of interstate disparities in educational resources, and between the two, capacity plays the larger role. States with higher capacity tend to make less effort yet raise more revenue than states with lower capacity. This reality highlights the need for a robust federal role in ameliorating interstate inequality. n158

( ) Some states can’t remedy disparities.

Bowman 17 — Kristi L. Bowman, Vice Dean for Academic Affairs, Professor of Law, and Faculty Affiliate of the Education Policy Center at Michigan State University, recipient of the Steven S. Goldberg Award for Distinguished Scholarship in Education Law from the Education Law Association, holds a J.D. and an M.A. in Humanities from Duke University, 2017 (“The Failure of Education Federalism,” Forthcoming in the University of Michigan Journal of Law Reform, Last Revised on April 27th, Available Online via SSRN at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2876889, Accessed 07-08-2017, p. 42)

IV. Cooperative Federalism

Fortunately for the children of this country, education federalism does not fail all states—some states have robust school finance systems and related policies that produce education of an acceptable level of quality (or higher), and do so more or less uniformly. In other states, judicial intervention has remedied constitutionally and functionally inadequate systems. However, as the previous section demonstrated, not all states are willing and able to address structural problems in public education. Especially given the likely growing federal support for school choice under the Trump Administration, it is important to consider a range of federal legal protections that could create and maintain a meaningful federal floor of educational quality.

Any Solvency Deficit Unacceptable

Any solvency deficit is an unacceptable injustice — “sufficiency framing” is immoral when children’s lives are at stake.

Gross 1 — James A. Gross, Professor of Industrial and Labor Relations at Cornell University, holds a Ph.D. from the University of Wisconsin-Madison, 2001 (“A Human Rights Perspective on U.S. Education: Only Some Children Matter,” The Catholic University Law Review (50 Cath. U.L. Rev. 919), Summer, Available Online to Subscribing Institutions via Lexis-Nexis)

I. Introduction

The quality and the availability of public education have continuously been debated in this country. The most recent debate is rooted in the report of the National Commission on Excellence in Education of 1983 which found education in the United States inadequate and in need of fundamental reform. n1 Since then, problems in the educational system have been the subject of numerous publicly funded reports and programs, federal legislation, judicial review and executive action through the creation of the Department of Education. Despite the blizzard of studies, papers, programs, and statistics about the overall problem, a major difference in the quality of education provided to the "advantaged and disadvantaged" remains. n2 The school-age children most affected by these educational "inadequacies" continue to be those most vulnerable to discrimination and the consequences of poverty.

How a problem is framed can seriously affect how it is addressed, and the dialogue on education has generally been framed in terms of a loss of national resources and loss of productivity. Those individuals who assess the problems of education in this country appear unable to understand or unwilling to acknowledge that fundamental issues of human rights, moral choice, and value judgments are at the core of any educational policy formulation. In short, the concept of human rights is widely ignored in the United States education policy. Policy-makers fail to recognize that when issues of rights and justice are ignored, educational policy decisions become a choice among alternatives representing only conflicting [*920] interests and varying degrees of power among interest groups who would gain or lose as a consequence of policy changes.

Policy-makers do not speak about children as children. n3 They do not deplore that "beautiful lives are [being] wasted," n4 nor affirm that "every child among us has a precious life and holds a precious dream." n5 They do not proclaim the most deadly sin to be the "mutilation of a child's spirit." n6 Policy-makers ignore that poor, minority children in this country are still denied their human right to education as well as their right to realize their full humanity.

This essay explains why education, particularly elementary and secondary education, is a human right. It explores how the United States historically ignored children's right to education. This essay identifies and discusses largely ignored moral choices and value judgments and conceptions of rights and justice underlying the distribution of educational benefits and burdens in this country. The essay also demonstrates how the application of human rights standards would require a fundamental redefinition of the issues of U.S. educational policy as well as a fundamental change in our understanding of the purpose of education.

Internationally, particularly beginning with the Universal Declaration of Human Rights, n7 education is already considered a human right. Education commissions in this country prefer to focus on inefficiencies rather than injustices. However, the existence of failing education for many children and excellent education for other children is the consequence of human decisions. These benefits for some and burdens for others are notthe result of accidental or impersonal forces beyond our control. Consequently, the values and conceptions of rights and justice underlying those decisions must be identified and assessed.

The educational injustices of today are not new. In 1953, a research project entitled The Uneducated n8 expressed the same concerns about the lack of quality education in the United States. The authors of The Uneducated, in carefully chosen words, found that although this country's [*921] efforts to provide "an ever-higher level of education for the mass of the population" are "unique and largely successful," certain parts of the country and particularly "certain groups" did not share in those educational efforts. n9

The authors of The Uneducated cited the "wastage of manpower" during World War II as irrefutable evidence that inadequate education in certain areas had serious consequences and that the country as a whole no longer could disregard these regional deficiencies as only local community or state responsibilities. n10 The report identified the southern states and specifically the Southeast as the most educationally deficient areas. n11 In an alarmingly frank statement, the authors attributed the "general disinterest" in the "educational problem" of the Southeast to "the fact that in that area so many of those affected by poor educational facilities were Negroes." n12

Although today's jargon is different, the themes of The Uneducated have remained unchanged over the years. The inadequately educated are "handicapped persons" who cannot function effectively as citizens, workers or soldiers. The solution requires improving the quality of education, and the federal government plays a major role in that improvement. n13

Global Right To Education Add-On

Only a federal right to education sets a global precedent for education rights.

Banks 8 — Christopher Banks, Associate Professor of Political Science at Kent State University, holds a Ph.D. in American Government from the University of Virginia and a J.D. from the University of Dayton, 2008 (“Judicial Policymaking and the U.S. Constitutional Commitment to (Economic) Social (and Cultural) Rights of Education in Comparative Perspective,” Paper Presented at the Midwest Political Science Association’s Annual National Conference, April 3rd, Available Online at http://citation.allacademic.com/meta/p_mla_apa_research_citation/2/6/8/6/2/p268622_index.html, Accessed 07-12-2017, p. 23-24)

Insofar as the U.S. Supreme Court may be perceived globally as resistant to guarantying social rights in education, the domestic political controversies over race-based initiatives and equality of funding in educational cases may be an impediment to recognizing analogous ESC rights in countries that may adjudicate them in the future. Although U.S. state governments have exerted more leadership in the area by putting more affirmative duties on legislatures to provide equal and adequate educational resources, the global community is unlikely to take as much [end page 23] notice of what is happening politically and legally in the fifty states. If a global awareness does not emerge, then any advancements of socio-economic rights in the area of education by U.S. state courts may have little impact on foreign jurisdictions, or international human rights courts, if and when they look for guidance in precedent. That prospect makes what the Supreme Court of the United States does in its cases even more important, especially if one plausibly concludes that the high court ought to be a leader in setting an example in regards to the advancement basic human rights, including the right to receive an equal education (Jheelan 2007; Aka 2006). In the end, political factors, including rival ideological judicial philosophies and role conceptions in U.S. courts, along with the inherent institutional constrains courts face in making social policy, are countervailing pressures that will endure, but must be overcome, so that there will be the universal recognition of a social right of education as envisioned by the ICESCR protocol.

* ESC = Economic, Social, and Cultural; ICESCR = The International Covenant on Economic, Social and Cultural Rights

That’s key to prevent poverty and structural violence.

HRW 16 — Human Rights Watch, 2016 (“Summary,” The Education Deficit: Failures to Protect and Fulfill the Right to Education through Global Development Agendas, Published by Human Rights Watch, ISBN 9781623133641, June, Available Online at https://www.hrw.org/sites/default/files/accessible_document/educationdeficit0616_accessible.pdf, Accessed 07-13-2017, p. 1-2)

Across the world, more than 120 million children and adolescents are absent from class.

In recent years, many countries have been part of international and regional political drives to ensure that all children have access and complete education in the countries that lag behind the most. Such efforts have had some success, with tens of millions entering primary education, and more girls staying in school and pursuing secondary education, improving gender parity in more countries.

Yet despite these and other advances, warnings sounded by the UN and global policy experts indicate that the global progress in education has “left behind” millions of children and young people. More children and adolescents are at risk of dropping out of school, and many are at school facing unsuitable learning conditions.

Behind this failure stands governments, which bear responsibility for ensuring that no child or young person is without education, and lack of focus—both in implementation and in content—in development agendas on governments’ human rights obligations.

This has resulted in an “education deficit”—a shortfall between the educational reality that children experience around the world and what governments have promised and committed to through human rights treaties. [end page 1] This not only undermines the fundamental human right to education, but hasreal and dire consequences for global development, and entire generations of children.

The benefits of education to both children and broader society could not be clearer. Education can break generational cycles of poverty by enabling children to gain the life skills and knowledge needed to cope with today’s challenges. Education is strongly linked to concrete improvements in health and nutrition, improving children’s very chances for survival. Education empowers children to be full and active participants in society, able to exercise their rights and engage in civil and political life. Education is also a powerful protection factor: children who are in school are less likely to come into conflict with the law and much less vulnerable to rampant forms of child exploitation, including child labor, trafficking, and recruitment into armed groups and forces.

The impact is comparable to an unending nuclear war.

Gilligan 96 — James Gilligan, M.D., Professor of Psychiatry at the Harvard Medical School, Director of the Center for the Study of Violence, and a member of the Academic Advisory Council of the National Campaign Against Youth Violence, 1996 (Violence: Reflections on Our Deadliest Epidemic, Published by Jessica Kingsley Publishers, ISBN 1853028428, p. 195-196)

The 14 to 18 million deaths a year caused by structural violence [end page 195] compare with about 100,000 deaths per year from armed conflict. Comparing this frequency of deaths from structural violence to the frequency of those caused by major military and political violence, such as World War II (an estimated 49 million military and civilian deaths, including those caused by genocide—or about eight million per year, 1939-1945), the Indonesian Massacre of 1965-66 (perhaps 575,000 deaths), the Vietnam war (possibly two million, 1954-1973), and even a hypothetical nuclear exchange between the U.S. and the U.S.S.R. (232 million), it was clear that even war cannot begin to compare with structural violence, which continues year after year. In other words, every fifteen years, on the average, as many people die because of relative poverty as would be killed in a nuclear war that caused 232 million deaths; and every single year, two to three times as many people die from poverty throughout the world as were killed by the Nazi genocide of the Jews over a six-year period. This is, in effect, the equivalent of anongoing, unending, in fact accelerating, thermonuclear war, or genocide, perpetuated on the weak and poor every year of every decade, throughout the world. Structural violence is also the main cause of behavioral violence on a socially and epidemiologically significant scale (from homicide and suicide to war and genocide). The question as to which of the two forms of violence—structural or behavioral—is more important, dangerous, or lethal is moot, for they are inextricably related to each other, as cause to effect.